B-1 Business Visitors

Foreign nationals may qualify as B-1 business visitors if they (1) maintain a foreign residence with no intention of abandoning; (2) receive no salary or fee from a U.S. source; (3) are not engaged in either skilled or unskilled local labor in the U.S. and (4) have adequate financial means to travel. Activities which are encompassed under B-1 status include: (a) commercial transactions not involving employment; (b) negotiating contracts; (c) consulting with business associates; (d) participating in conferences or seminars; and (e) performing duties as a member of a board of directors of a U.S. company.

In lieu of a B-1 visa, foreign nationals from certain countries (principally European) may enter the United States on the visa waiver program, designed for aliens from certain designated countries to enter the United States for 90 days without having a visa issued. Stay cannot be extended beyond 90 days, nor can an alien change status to another non-immigrant visa category. Instead, the alien will have to leave the country and apply for a new non-immigrant visa abroad.

E-1 Treaty Traders

E-1 Treaty Traders

E-1 treaty traders are those citizens of certain countries with whom the United States has entered into trade treaties who are permitted to enter the United States to establish or work for a particular enterprise engaged in substantial trade principally between the U.S. and the treaty country. The company or individual engaging in trade in the United States must have the same nationality as the treaty company, and the enterprise must be majority-owned by treaty country citizens. The foreign nationals employed in the U.S. must be employed in a supervisory or executive capacity, or one involving essential skills to the operation of the enterprise.

E-2 Treaty Investors

E-2 Treaty Investors

Treaty investor status requires:

An investment treaty between the U.S. and the country of which the treaty enterprise is a “national”

At least 50% ownership of the investing enterprise by nationals of the treaty country; and

Citizenship in the treaty country by the principal investors and those employees seeking admission through the treaty enterprise. The investor is required to make an active, substantial investment, which is not marginal in nature (i.e.; not intended merely to support the investor and his family). The foreign national seeking treaty investor status must fill a key or essential role with the company, either as the director who will direct or manage the investment, or as a specially trained and highly qualified employee necessary for the development of the business.

Temporary E non-immigrant visas allow business owners, managers, and employees to remain in the United States for extended periods of time.

H-1B Specialty Workers

H-1B Specialty Workers

A total of 65,000 visas are available annually for foreign nationals in “specialty occupations.” A specialty occupation involves the theoretical and practical applications of a body of highly specialized knowledge, and the attainment of a Bachelor’s Degree (or its equivalent) or higher degree in the specific specialty. A job requiring such a Bachelor’s Degree is also essential.

An employer seeking to hire a professional from abroad must first file and obtain approval of a labor condition application filed with the Department of Labor making the following attestations:

No strikes or lockout at the place of employment;

The alien will be paid higher of the actual wage or the “prevailing wage;” and

No U.S. workers will be adversely affected by the hiring of the alien

H-1B visas may be conferred in three-year increments. A total of six years is permissible in H-1B status, but may be extended in certain circumstances where an employer has either: (1) filed a labor certification for the employee seeking permanent residence, or (2) filed an immigrant petition, either of which has been pending for a year.

NAFTA Professionals

NAFTA Professionals

The equivalent of H-1B visas for Canadians and Mexican professionals are “TN” visas, which may be applied for at border posts. There are special restrictions on admission of Mexicans under NAFTA, however, which may make this category of more limited value to Mexican nationals. Canadian professionals, if they qualify, may enter the United States under NAFTA without the necessity of approval by the DHS of a petition filed on their behalf by their supporting employers. Rather, presentation of appropriate documentation is necessary at the port of entry.

TN Visas are reserved for groups of professionals who are designated on Schedule 2 of NAFTA. Such visas are valid for one year, but may be extended indefinitely. TN applicants are required to establish their non-immigrant intent at the border. There is no numerical cap on the number of Canadian TN professionals admitted annually.

L-1 Intra-Company Transferees

L-1 Intra-Company Transferees

L-1 visas are utilized by companies requiring their foreign employees to work in the United States for a temporary period. The foreign and U.S. employer of the transferee must be a part of the same qualifying organization such as a parent, branch, affiliate, subsidiary, etc.

L-1B visas are available for individuals possessing “specialized knowledge” of the company’s produce and its application in the international market or having an advanced level of knowledge with regard to the processed and procedure of the company. The foreign national is required to have been employed in a specialized knowledge capacity with the foreign company for at least one year of the three preceding years prior to the transfer. L-1B non-immigrants are entitled to a maximum stay of five years. A total of three years may be granted initially.

L-1A visas are available for managers and executives. A foreign national performing managerial duties must have been employed in a managerial or executive capacity with the foreign company for one year within the three previous years of the transfer. The foreign national must be coming to perform duties related to the management of an organization.

An alien coming to perform executive duties is one who has responsibility for the management of an organization or major component or recognized function; has authority to establish goals or policies; exercises wide latitude and discretionary decision making; and receives only general supervision from higher executives or stockholders. The L-1A manager or executive must also have been employed in an executive, managerial, or specialized knowledge capacity with the foreign company for one year within the preceding three years of the transfer. An L-1A transferee is entitled to a total period of stay of seven years.

L-1 visas are utilized by companies requiring their foreign employees to work in the United States for a temporary period. The foreign and U.S. employer of the transferee must be a part of the same qualifying organization such as a parent, branch, affiliate, subsidiary, etc.

L-1B visas are available for individuals possessing “specialized knowledge” of the company’s produce and its application in the international market or having an advanced level of knowledge with regard to the processed and procedure of the company. The foreign national is required to have been employed in a specialized knowledge capacity with the foreign company for at least one year of the three preceding years prior to the transfer. L-1B non-immigrants are entitled to a maximum stay of five years. A total of three years may be granted initially.

L-1A visas are available for managers and executives. A foreign national performing managerial duties must have been employed in a managerial or executive capacity with the foreign company for one year within the three previous years of the transfer. The foreign national must be coming to perform duties related to the management of an organization.

An alien coming to perform executive duties is one who has responsibility for the management of an organization or major component or recognized function; has authority to establish goals or policies; exercises wide latitude and discretionary decision making; and receives only general supervision from higher executives or stockholders. The L-1A manager or executive must also have been employed in an executive, managerial, or specialized knowledge capacity with the foreign company for one year within the preceding three years of the transfer. An L-1A transferee is entitled to a total period of stay of seven years.

O and P Visa

O and P Visas

The O visa is designated for aliens of “extraordinary” ability in the sciences, arts, education, business, or athletics. Certain aliens accompanying or assisting those aliens, and their family members, may also qualify for an O visa. There is no numerical limit on the number of annual admissions of such aliens. However, only those individuals rising to the very top of their field may qualify. The applicant is required to demonstrate at least three of the following:

Receipt of nationally or internationally recognized prized or awards for excellence;

Membership in associations requiring outstanding achievements of their members;

Published material in professional or trade publications regarding the alien’s work in the field;

Participation on a panel, or individually, as a judge of the work of others in the field;

Scientific, scholarly, or business related contributions of major significance in the field;

Authorship of scholarly articles in professional journals or other media;

Employment in critical or essential capacities for organizations and establishments having a distinguished reputation;

High salary or other remuneration for services; and

Other comparable evidence.

There is no outside limit on the period of stay for O non-immigrants. The initial period of stay is approved for the length of time necessary for the event, activity, or group of events or activities to be completed, up to a period of three years.

P non-immigrants are those entertainers and athletes who do not qualify under the O category for extraordinary ability. Accompanying aliens are generally not permitted for P entertainers and athletes. The H-1B category is inapplicable to those who qualify under P status.

P-1 visas are available to both athletes and athletic teams who compete at an internationally recognized level and for aliens who perform with, or who are an essential part of, an entertainment group that has received international acclaim for a sustained and substantial period of time.

Family-Based Immigration

Family Based Immigration

Each year, 480,000 individuals are eligible to immigrate based on family considerations. However, in most cases, the categories for family-base immigration have caps imposed. The only exception to this rule is for immediate relatives of U.S. citizens, who are defined as spouses, minor unmarried children under 21, and parents. There are no annual limits on the number of immediate relatives who may be admitted. Nevertheless, the number of immediate relatives is subtracted from the other 480,000 family-based individuals eligible to immigrate each year.

The categories of family-sponsored visas below have numerical caps placed on their availability. Where visas are not allotted in any particular category in any one-year, unused visas may be added to the cap the following year. In most cases, however, waiting periods are imposed to obtain a family-based visa.

Categories of Family-Sponsored Preferences:

Unmarried, adult sons and daughters of U.S. citizens (age 21 or older).

Spouses and unmarried children under 21 of lawful permanent residents.

Unmarried adult sons and daughters over the age of 21 of permanent residents.

Unmarried, adult sons and daughters of U.S. citizens.

Brothers and sisters of U.S. citizens (any age) who are at least 21 years of age.

Currently, there are long delays in virtually all of these family sponsored preferences. Visa applicants from certain countries have even longer waits, including those from China, India, Mexico, and the Philippines. Immigrant visas are not available for applicants until their “priority dates” become current. The visa availability numbers change from month to month and are published in the Department of State’s visa bulletin.

Employment-Based Immigration

Employment Based Immigration

There are 140,000 visas available each year for those who are eligible to immigrate to the United States based on employment considerations. Before a visa will be issued to an intending, employment-based immigrant, however, an employer must normally first obtain a “labor certification” from the Department of Labor confirming that there is no willing and qualified U.S. worker who meets the minimum qualifications for the job for which the foreign national is being hired. Under new regulations, labor certifications may take 60-90 days to conclude. Employment based immigration is divided among several preferences. They are as follows:

First Preference (Priority Workers)

First Preference (Priority Workers)

A total of 40,000 visas are available to the following:

Individuals with extraordinary ability in the sciences, arts, education, business or athletics;

Outstanding professors and researchers;

Multinational executives and managers.

(a)Extraordinary Ability

Extraordinary ability aliens are part of a small percentage who have risen to the very top in their fields. No job offer or labor certification is required under this category. A petitioner must submit evidence that he or she will continue to work in the United States in the area of expertise through letters from prospective employers; evidence of prearranged commitments for employment; and a description of how/she will continue to work in that field in the United States.

Criteria for demonstrating EB-1 “extraordinary status” include at least three of the following: receipt of lesser nationally or internationally recognized prizes or awards for excellence; membership in associations in the field requiring outstanding achievement of their members; published material about the alien in professional publications; evidence that the foreign national is a judge of the work of others in the field; evidence of the foreign national’s original contributions of major significance to the field; authorship of scholarly articles; display of the foreign national’s work at artistic exhibitions; evidence that the foreign national has performed in a leading or critical role for an organization that has a distinguished reputation; evidence that the foreign national is highly paid; evidence of commercial success in the performing arts; or other comparable evidence of where the above standards do not readily apply to the field.

(b)Outstanding Professors and Researchers

A U.S. employer is required to apply for an outstanding professor or researcher. However, there is no labor certification requirement which must be fulfilled prior to the employer’s filing the petition with the DHS.

The basic requirements for outstanding professors and researchers are as follows:

Internationally recognized as outstanding in a specific academic area;

Having a minimum of three years of experience teaching or research in particular area; and

If employer is a university or institution of higher education, the foreign national must be assuming a tenured or tenure-track position or a comparable research position at the university (permanent). If private employer, individual must be employed in a permanent research position, and such employer must employ at least three full-time researchers and show that it has achieved documented accomplishments in the academic field.

At least two of the following types of evidence must also be submitted:

Receipt of major prizes or awards;

Membership in associations requiring outstanding achievements of its members;

Published material in professional journals written by others about the alien’s work;

Evidence that the foreign national participates as a judge of work of others in the field;

Original scientific or scholarly research contributions to the field; and

Authorship of scholarly books or articles or in scholarly journals with international circulation in the academic field.

(c)

Multinational Executives and Managers

A multinational manager or executive is eligible for priority worker status if he or she has been employed with the employer for at least one year in the three years preceding entry to the U.S. with the parent, subsidiary or affiliate of the U.S. company abroad, or, in the case of an alien already in the United States, one of three years prior to transfer to the USA. The one year of required experience abroad must have been in a managerial or executive capacity.

Those foreign nationals employed in a “managerial” capacity are those who manage the organization or a department, subdivision, function, or component of the organization; or who supervise and control the work or other supervisory, professional, or managerial employees or manage an essential function within the organization. A managerial employee also exercises discretion over day-to-day operations of the activity or function for which that employee has authority. Those foreign nationals working in an executive committee typically direct the management of the organization, establish goals and policies of the organization; exercise wide latitude in discretionary decision making; and receive only general supervision or direction from high level executives.

Second Preference

Second Preference (Advanced Degree Holders/Exceptional Ability)

The second preference or category is reserved for those persons who are members of the professions holding advanced degrees or aliens of exceptional ability. There are 40,000 visas available annually. Aliens who hold advanced degrees or their equivalent possess at least the equivalent of a U.S. Masters Degree for a position which requires the degree. A Bachelor’s Degree and five years experience can qualify an alien, if the position ordinarily requires the Master’s Degree. Experience, however, cannot substitute for a Ph.D.

Foreign nationals also qualify under the second preference if, because of their exceptional ability in the sciences, arts, or business, they will substantially benefit the national economy, culture, educational interests, or welfare of the United States. In short, exceptional ability foreign nationals are those who possess a degree of expertise, which is well above that encountered ordinarily in the sciences, arts, or business.

Aliens of exceptional ability must demonstrate at least three of the following: ten years of full time experience in the occupation; a license to practice the profession; an official academic record showing a degree, diploma or similar award from a university; evidence of a high salary; membership in professional associations; recognition for achievements and significant contributions to the industry by peers, governmental entities, or professional organizations; or other comparable evidence.

An exceptional ability alien or a foreign national with an advanced degree is required to obtain a job offer and labor certification unless it can be shown that a waiver of this requirement is in the national interest. An exemption from these requirements may be granted upon a showing that the alien’s work is of substantial intrinsic merit and is national in its scope. There must also be a showing that the alien’s participation in his field considerably outweighs any inherent national interest in protecting U.S. workers through the standard labor certification process.

Third Preference

Third Preference (Professionals/Skilled Workers/Others)

There are 40,000 visas reserved each year for skilled workers, professionals, and other workers. “Other workers” cover workers who are “capable of performing unskilled labor” and who are not working in a temporary or seasonal capacity. However, there are only 5,000 allotted to such unskilled workers. Skilled workers are those capable of performing skilled labor which required at least two years training or experience. Relevant post-secondary education may count as training. Professionals are those who possess a Bachelor’s Degree or its foreign equivalent. Petitioners must also demonstrate that such a degree is the normal requirement for entry into the profession.

A job offer and labor certification is required for most foreign nationals under the third preference. However, there is a limited exception for physical therapists and nurses.

Forth Preference

Fourth Preference (Special Immigrants)

The fourth employment-based category is reserved for those “special immigrants” including ministers, religious workers, and select others. There are a total of 10,000 visas available annually.

Fifth Preference

Fifth Preference (Investors)

The fourth employment-based category is reserved for those “special immigrants” including ministers, religious workers, and select others. There are a total of 10,000 visas available annually.

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